03/30/90 HUGH J. BEINS v. DISTRICT COLUMBIA BOARD

Petition for Review of an Order of the District of Columbia Board of Zoning Adjustment

Before Rogers, Chief Judge, and Terry and Farrell, Associate Judges.

The opinion of the court was delivered by: Farrell

FARRELL, Associate Judge: In this case, we reverse an order of the Board of Zoning Adjustment (the Board) holding that petitioners' delay of thirty-two days in filing an appeal from a decision of the Zoning Administrator barred the appeal on the ground of laches. Although we do not conclude that a delay of this brief a duration may never justify a determination of laches, we hold that an exceptional showing of both prejudice and unreasonableness of the delay will be required, see American Univ. Park Citizens Ass'n v. Burka, 400 A.2d 737, 740 (D.C. 1979), before a delay of this length will be deemed to forfeit a right to appeal under a doctrine designed "to prevent the enforcement of stale claims." Id. Because that showing has not been made in this case, we reverse the Board's order and remand for consideration of petitioners' claims on the merits.

I.

As the Board found, this litigation had its genesis in the Zoning Administrator's issuance of a permit on August 22, 1983, allowing the construction of a rear addition to premises at 3813 Jocelyn Street, N.W., owned by intervenors, the Foxes. The house in question is a single-family detached dwelling built before 1958. In approximately March of 1983, the Foxes hired a designer to develop a proposal to enlarge an existing family room, remove the existing outdoor deck and construct a new one, enlarge the existing kitchen, and create an interior hallway connecting the kitchen to the family room. On May 6, 1983, after approval of the plans by the owners, the designer reviewed the preliminary drawings with staff members of the Zoning Review Branch, Department of Consumer and Regulatory Affairs, for compliance with the zoning regulations. The designer was informed that the plan conformed with the applicable regulations. A second review of the plans by the Zoning Review Branch led to similar approval, and on August 22, 1983, the Foxes submitted final plans and an application for a building permit to the office of the Zoning Administrator, which issued a building permit that day. The Foxes then accepted bids On the proposed construction, selected and hired a contractor, and secured financing to proceed with the project. As the Board found, they entered into contracts or binding commitments for custom-made materials for an overall financial obligation of between $70,000 and $80,000.

Meanwhile, the zoning regulations had been amended in a way that adversely affected the Foxes' project. The house was a nonconforming structure in that it had been built before 1958 and did not conform to the twenty-five foot minimum rear yard requirement for properties, such as this one, zoned R-1-B. *fn1 Effective August 5, 1983, the zoning regulations pertaining to nonconforming structures were amended to provide that improvements to such structures could not increase or extend existing non-conformities or create new ones. 11 DCMR § 2001.3 (c) (1987). Neither the designer nor the Foxes were aware of this change in the regulations; apparently the zoning officials who issued the building permit on August 22 also were unaware of its effect on the Foxes' application. Accordingly, on October 24, 1983, construction began on the rear addition, and on that day the existing family ram (which was above the garage) and deck were demolished, and structural work began on the footings and piers for the new deck.

Petitioners, the Beins', who own a home on the other side of a twelve-foot public alley behind the Foxes' rear yard, noticed the work and immediately contacted zoning officials and other representatives of the District of Columbia government to learn the nature of the construction. On October 26, Mr. Beins met with Joseph Bottner, Jr., the Deputy Zoning Administrator, and protested the issuance of the building permit without prior notice to the Beins' as neighboring property owners, and as violating the rear yard requirements of the zoning regulations. That same day, Bottner advised the Foxes and their designer by letter that a review of the plans had disclosed a potential problem of compliance with the rear yard requirement; at the same time, he instructed the chief of the Construction Inspection Branch to issue a stop work order on the premises "until issues relative to the rear yard are resolved." A stop-work order was issued that day.

The next day, October 27, the Foxes and the designer met with Zoning Administrator James Fahey and Assistant Corporation Counsel Jonathan Farmer. The Foxes detailed the steps they had taken to ensure compliance with the zoning regulations, the nature and extent of the work completed to date, and the financial obligations they had incurred in reliance on issuance of the building permit. Farmer advised Fahey that, given the work already performed, *fn2 the District of Columbia would be estopped from revoking the Foxes' permit. At the Conclusion of the meeting, therefore, Fahey ordered the stop work order rescinded and allowed the construction to continue.

Bottner informed the petitioners that day of the results of the meeting and of their right to appeal the rescission to the Board. Upon receiving this notice, Mr. Beins wrote a letter to the Mayor of the District of Columbia, with a copy to members of the Council of the District of Columbia and Deputy Zoning Administrator Bottner, complaining of the zoning violations and asking for an opportunity to meet with Fahey and Farmer. Beins testified, without contradiction, that during the next two and a half weeks he was in "constant contact" with Fahey and Bottner, but was told again that, although the construction permit had been erroneously issued, the agency was estopped from terminating the construction. Beins also contacted his Advisory Neighborhood Commission to obtain its evaluation of his claim and to gain its support, *fn3 which resulted in a letter from the Commission to the Board on December 6 expressing concerns about the proper issuance of the permit. Meanwhile, Beins prepared his notice of appeal to the Board for filing on November 25 (the notice of appeal bears that date), but did not file it until Monday, November 28, because of the intervening Thanksgiving weekend. *fn4 In response to a letter of November 30 from the Executive Director of the Board requesting copies of the decisions appealed from, Beins answered on December 2 by requesting, among other things, "that this appeal be expedited and that the illegal construction at 3813 Jocelyn Street, N.W., be stopped immediately pending a decision of the BZA." On December 6 he again "urgently requested" expedition of the appeal, a request the Board denied on December 7. Notwithstanding this activity, between October 27 and November 28, the Beins' did not tell the Foxes of their continued opposition to the construction or their intention to appeal.

On January 30, 1984, the Foxes intervened in the appeal and moved to dismiss it on the basis of estoppel and laches. On May 29, 1984, following a February hearing, the Board dismissed the appeal on the ground that the District of Columbia was estopped from revoking the issued building permit. Petitioners appealed that decision to this court, which remanded the case on December 12, 1984, at the request of the Corporation Counsel, who took the position that estoppel should not bar a neighboring property owner (as distinct from the District) from asserting rights under the zoning regulations. The Board acceded to this position and conducted further hearings on the issue of laches. On November 8, 1988, it dismissed the appeal again on that ground, finding that the Beins' delay in appealing to the Board "was not reasonable" or adequately explained, and that it prejudiced the Foxes who "reasonably continued on the course of the authorized construction, with the result that the construction and the expenditures of [the Foxes] reached a very substantial level."

The Board found, in particular, that "no later than October 27, 1983, the [Beins'] had sufficient knowledge and information to make it reasonable for them to initiate an appeal to this Board," yet they filed the appeal "approximately three months after the issuance of the building permit, and one month after the decision to rescind the order." Moreover, the Board found that the erroneous granting of the permit should have been apparent to the Beins' from the beginning:

With the arguable exception of the stairs leading from the new deck, every aspect of the construction which enlarged the existing structure was almost entirely in violation of 11 DCMR 2001.3. This includes the addition to the kitchen, the new deck, and the cantilevered portion of the new family room. Concrete footings for at least a portion of the work were in place on October 26, 1983. As early as November 7, substantial work on the deck was in progress. [Emphasis added.]

Noting that Mr. Beins was a practicing attorney in the District of Columbia, the Board found that between October 27 and November 28, 1983, the Beins' "engaged in a wide variety of action and communication with various District of Columbia officials," none of whom had the authority vested in the Board to entertain zoning appeals. Nor did the Beins' communicate "their very strong feelings and continuing concerns" to the Foxes. By November 28, the Board found:

Demolition of the previously existing family room and deck had been completed; siding had been removed from the wall next to the kitchen; the new family room had been framed in, and was under roof, although shingling of the roof was not complete until December 3; the floor of the kitchen ...

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